Experience of a new witness in the Court of Protection

By Catriona McIntosh, 17th December 2021

I am a Consultant Clinical Neuropsychologist for The Disabilities Trust and director of Yorkshire Neuropsychology. I specialise in assessments and rehabilitation provision for people who have acquired brain injury. I provide expert witness reports to the court but until recently, I have not been to court. 

Like many psychologists, I have for many years heard words of caution about moving into court work.  Some colleagues have commented on not wishing to go into this field and others expressed worries of the adversarial nature of cross examination and anxiety that their work may be negatively evaluated. 

These cautions are not unfounded.  As an anonymous brain injury case manager states in a review of the role of an expert “the reputation of an expert can be lost in an instant. We are all only as good as our last case, as the careless, hubristic, unlucky or over-worked can find to their cost” Furthermore, the case of  AMDC v AG[2020] EWCOP 58, where the expert’s evidence was found to have substantial deficiencies under cross examination has highlighted the need for experts to both have expertise in their field as well as adequate understanding of their role to the court. (See the blog about this case from observers, “When expert evidence fails”). 

But my first experience of being a witness in the Court of Protection made me realise that whilst it is important to undergo training in being a witness and to safeguard against these risks, it is important to not lose sight of the value a health professional can contribute to court cases. Perhaps in urging caution without considering the benefits there may be a risk of putting off clinicians from contributing to a field where they have a valuable role to play. 

Recently I was sworn in to give evidence in the Court of Protection as a witness of fact for the first time. I must admit that that the court date being discussed and being told that it would be helpful if I could possibly attend had not made me realise that I was to be giving oral evidence as a formal witness. I had attended for a short time at a previous hearing and contributed briefly in a less formal way. However, the benefits of identifying what I was being asked to do only the day before I was due in court meant at least there was not much time to overthink it. 

The issue in the case was whether P should be admitted into a rehabilitation setting against their will under court order and I was to be cross examined on my assessment of P and my recommendations for how that admission ought to take place. 

I am pleased to share that the experience was interesting and not intimidating. I was asked questions by three different advocates, and the judge, with the aim of confirming and expanding aspects of my opinion. One advocate quite reasonably asked if the issues I had raised in an email for the court to consider meant that I had hesitations about the appropriateness of the admission. It was a valid query but I was able to share a view that we should never take the serious step of depriving someone of their liberty without adequate consideration of whether it was required and justifiable. This did not mean that that I am expressing an opinion on the appropriateness of the action, as I felt that this was for the court to decide. 

A key focus of the case was on the way admission should proceed and whether the ‘graded admission’ which I had proposed was appropriate or not. I found the process of giving evidence helpful in putting across typical needs of someone with autism and that a graded admission allows consideration of anxiety around adjusting to change. That whilst there may be justification for a person to be deprived of their liberty against their wish, that does not mean that the process of this cannot be conducted with due consideration of their autism needs.

I understood that social services were initially in disagreement with this idea. The concern was that it would be better to arrange P’s admission quickly and that doing so more gradually would lead to an increase in their anxiety, and ultimately that they might refuse to be admitted. I was able to posit; however, that the situation would be no worse than the current one of P refusing to attend with a possible police escort being considered; and that a graded approach increased the chances of their engagement and gave them some control over the process. The court accepted this and plans were approved that authorised P’s admission but in accordance with a carefully designed plan that took a graded approach, with shorter visits prior to overnight stays to try to acclimatise P to the plan.

In fact, in the end the graded process did not aid the situation. But it nonetheless felt ethical for the team to have at least tried what I considered to be a less restrictive approach for P and one that tried to place their wishes more centrally in what was happening-an approach that is key to the person-centred nature of safeguarding in the Care Act. 

At no point in court did it feel confrontational or like I was being attacked when I was being asked questions in court. Indeed, the entire process felt respectful, even if a little alien in its formality. 

On reflection, attending the COP as a witness of fact was a valuable experience before being called in an expert capacity and helped to build my confidence in my skills in defending my opinion and how I can help court consider a patient’s neuropsychology needs. 

Dr Catriona McIntosh is Consultant Clinical Neuropsychologist for Yorkshire Neuropsychology and The Disabilities Trust. She tweets @Catrionamcinto1

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